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Should Preventing Work Place Violence Yield to an Employee’s Right to Bear Arms?

Employers trying to reduce workplace violence involving guns are running into opposition from gun rights activists and state legislatures as noted in the April 4-10 Bloomberg Businessweek, A Bring Your Gun to Work Movement Builds.

Such legislation essentially forces employers to make a calculated choice between bad and worse: Violate gun laws or allow employees to have convenient gun access while at work. And such access may turn the routine day-to-day workplace dispute or an emotionally cataclysmic event like a termination into the next tragic headline.

In addition to an employer’s concern about threats to employee safety, increased access to firearms could also increase litigation risks and liability for failing to maintain a safe work place.

Gun Legislation and Workplace Violence: The Numbers

According to the Bloomberg article, 37 bills restricting an employer’s ability to limit gun access on company property were introduced in 16 state legislatures in 2011. Some of these bills go so far as to allow employees to sue employers for even asking about possessing a firearm in a vehicle parked on company property. These restrictions are being proposed despite the following data:

Workplaces that allowed guns were about five times more likely to experience a homicide as those where all guns were banned … The Bureau of Labor Statistics says workplace shooting caused 420 deaths in 2009 and 421 in 2008.

Felix Nater CSC, of Nater Associates, Security Consulting, a seasoned workplace violence prevention expert, offers this observation: “The increased accessibility of firearms in any work environment creates potential liabilities and unmanageable risks that even the most conscientious business owner cannot protect against without a concerted management investment and commitment to workplace violence prevention education and accountability.” He further notes that “while guns don’t kill, access to guns in a potentially hostile work setting will place additional burdens on employers who value employee safety.”

Programs, however, do not guarantee success. Consider Boeing’s program for monitoring and predicting jet maintenance issues – an industry gold standard for decades – mistakenly assumed a certain model could make 60,000 flights before needing to undergo inspections to assess fuselage cracking. That was before the April 1, 2011 rupture mid-flight of the fuselage of Boeing’s jet, which had made about 40,000 flights. Boeing revised its 60,000 recommendation down to 30,000 because “engineering assumptions were not nearly as accurate ” as originally thought.

Michigan Gun Legislation

Michigan, like many other states, allows for the carrying of a concealed weapon (CCW). But under the current CCW law, employers are expressly permitted to regulate and prohibit employees from carrying a concealed firearm in the course of his or her employment. And many Michigan employers implement written policies prohibiting their employees from carrying a concealed weapon while in the workplace. Ideally, such policies are a part of a larger comprehensive program to prevent workplace violence.

But in 2009, Michigan state legislation was introduced that would have undercut such policies by restricting or outright eliminating an employer’s ability to regulate the bringing of fire arms onto workplace parking lots. The proposed legislation was Senate Bill 792 (Republican Sponsored) Senate Bill 793 (Democratic Sponsored), House Bill 5302 (Republican Sponsored) and House Bill 5303 (Democratic Sponsored). The problem to be solved by this legislation, as identified in the legislative analysis accompanying SB 792:

Workplace rules prohibiting guns should not trump the rights of individuals … [employers] should not be allowed to discriminate against law abiding workers exercising their constitutionally protected right to self defense.

Among the restrictions and obligations imposed by the preceding legislation:

Businesses, commercial enterprises, and places of employment would be required to allow individuals to transport or store a legally possessed firearm or ammunition in a locked, privately owned vehicle in those entities’ parking areas;

Employers would be prohibited from enacting policies to the contrary. And if an employer fired or disciplined an employee for transporting or storing a firearm as authorized in the proposed legislation, the employee could demand reinstatement and bring legal action if not reinstated; and

Employers, except in cases of gross negligence, would not be liable in a civil action for damages stemming from another person’s action involving firearms or ammunition stored in accordance with the legislation.

Points to Consider Regarding the Regulation of Gun Access in the Workplace

The proposed legislation referenced above did not make it to a vote in the Michigan legislature. But the potential passing of this legislation and similar legislation that has already passed raises numerous issues for employers and employees. Regardless of your stance on gun rights and gun restrictions, three such issues to consider:

First, the statutory limitations set forth in the proposed Michigan legislation for employer liability, i.e., requiring a showing of “gross negligence,” does not insulate employers from liability. Instead, it merely raises the bar for employer liability. And while that sounds great in theory, employers will still generally be required to expend resources in terms of time and legal expense to successfully show that the requisite showing of gross negligence to impose liability does not exist. And, such a showing will often come down to a fact intensive analysis by a judge and potentially a jury. Take for example under Michigan law, “gross negligence” generally requires a showing that conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury results. Whether this issue can be resolved by way of a motion or require a trial will depend upon the facts.

Second, consider an employee who references possessing a firearm in the middle of a workplace dispute, makes threats, veiled or overt, expresses approval for using violence to solve disputes, or experiences a major life change such as a divorce or financial problems. The restrictive langauge concerning employer inquiries as to gun possession and restrictions against taking adverse action for such possession add a layer of complexity for investigating workplace conduct that could lead to violence.

Third, author Dan Roam said “Whoever best describes the problem is the one most likely to solve it.” The proposed Michigan legislation to limit restrictions on gun access at the workplace was introduced when Michigan, like most states, was bleeding jobs and as a country we were approaching double-digit unemployment (Michigan was already just over 14%). Certainly guns are not the real problem when it comes to violence – no amount of regulation will prevent someone determined to endanger life. But equally certain is that the dire economic conditions our state and country faced was a real problem businesses and individuals faced that needed to be fixed. So while having the opportunity for gainful employment is not a “constitutional right,” it is still worth asking whether purportedly protecting the constitutional right to bear arms over job creation was the “problem” legislators should have focused on.

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